United States District Court, N.D. Mississippi, Aberdeen Division
matter comes before the Court sua sponte in response
to the show cause order entered on January 28, 2019. Doc. 8.
December 10, 2018, Plaintiff Zorri Rush filed his complaint
in this matter, purporting to assert some sort of claim under
the Americans with Disabilities Act. Rush's allegations
against the defendant, in whole, are:
Defendants [sic] in this case are charged with attempting to
deny services to an individual with disabilities in violation
of the Americans with Disabilities acts., [sic] The amount in
controversy includes d damages for personal injury due to
medical malpractice., [sic]
Defendant entered fraudulent information to medical records.
The defendant di so in a medical capacity that prevented
medical care and disrupted treatment plans for chronic
lifelong health concerns.
Compl., Doc. 1 at 1. In addition to his complaint, Rush filed
a motion to proceed in forma pauperis. Mot, Doc. 2.
United States Magistrate Judge assigned to this case
recognized several issues with both Rush's complaint and
motion to proceed in forma pauperis. First, the complaint
alleged so few facts that it appeared not to state a claim
for relief or to assert facts supporting this Court's
jurisdiction. Second, despite the fact that this was at least
the ninth case Rush had filed in a federal district
court in Mississippi in the past few months, he had failed to
include information necessary to determine his pauper status
and had failed to use the Court's form motion, despite
being previously admonished to do so. To that end, the Magistrate
Judge issued an order directing Rush to: (1) show cause why
the complaint should not be dismissed for failure to state a
claim or lack of subject matter jurisdiction by providing
additional facts; and (2) complete the Court's in forma
pauperis application, which was attached to the order. The
response to this order was due February 11, 2019. That date
has passed, and Rush has filed neither a response nor liis in
forma pauperis application.
U.S.C. § 1915 provides that a court may waive failing
fees for plaintiffs unable to afford them. 28 U.S.C. §
1915(a)(1). But the section also provides that "the
court shall dismiss the case at any time if the
court determines that ... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief mi iy be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
Id. § 1915(e)(2) (emphasis added).
standard for judging whether an in forma pauperis complaint
fails to state a claim is that under Rule 12(b)(6). Hale
v. King, 642 492, 487 (5th Cir. 2011). That standard
requires that a plaintiffs complaint "'contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'"
Phillips v. City of Dallas, Tex., 781 F.3d 772,
775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
a claim is frivolous if "(1) the claim's realistic
chance of ultimate success is slight, or (2) the claim has no
arguable basis in law and fact." Wilson v.
Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989).
"District courts have broad discretion in determining
whether a complaint is frivolous under § 1915(d)"
the Court must afford a pro se complaint liberal
constriction, Macias v. Raul A. (Unknown), Badge No.
153, 23 F.3d 94, 97 (5th Cir. 1994), it is clear that
Rush's complaint here both fails to state a claim and is
frivolous. The few vague factual assertions Rush makes
provide no arguable basis for a claim against defendants.
Indeed, because the factual allegations of the complaint are
so lacking, the Court is unable make out what Rush's
claim against the defendant could possibly be, much less
whether it has a chance of success. Because his claim is
frivolous, § 1915(d) demands its dismissal.
Court takes notice that this is the third of Rush's cases
dismissed by the undersigned alone. Two other cases have been
dismissed by other judges for lack of
jurisdiction. In each of these cases, the Court has
informed Rush of the problems with his pleadings and in forma
pauperis applications and given him the opportunity to
correct them. Still, rather than accepting that his pleadings
are deficient and attempting to fix them, Rush has
responded by accusing the judges of this Court of bias.
acting pro se has no license to harass others, clog
the judicial machinery with meritless litigation, and abuse
already overloaded court docket." Farguson v. MBank
Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). The
repeated filing of frivolous and meritless claims warrants
the imposition of sanctions, monetary or otherwise.
Id. (upholding imposition of monetary sanctions and
injunction prohibiting plaintiff from filing further lawsuits
against defendants); see also Prewitt v. Alexander,
173 F.R.D. 438 (N.D. Miss. 1996) (imposing monetary sanctions
on pro se plaintiff for repeated frivolous filings and
prohibiting plaintiff from filing any other lawsuit in this
district without prior court approval). Accordingly, the
Court warns Rush that filing any more frivolous and
meritless lawsuits will result in the imposition of
sanctions, which nay include monetary sanctions and
restrictions on his ability to file further actions in this
these reasons, Rush's complaint is dismissed, and his
motion to proceed ...